Rajesh Kumar Jaiswal vs State of U.P.

Vipin Sinha, J.—Heard Sri Dileep Kumar assisted by Sri Rajrshi Gupta, learned counsel for the applicant, Sri G.S. Chaturvedi, learned senior Advocate assisted by Sri Shishir Tandon, learned counsel for opposite party no. 2 and learned A.G.A. for the State.

The present 482 Cr.P.C. application has been filed with a prayer to quash the order dated 07.07.2014 passed by Additional Sessions Judge, Court No. 6 Allahabad in S.T. No. 504 of 1997 (State Vs. Phool Chand & Others) arising out of Case Crime No. 246/1993, P.S. Ghoorpur, District Allahabad by which fresh charges have been framed against the applicant under Sections 452 read with Section 120B, Section 307 read with Section 120B I.P.C. and Section 302 read with Section 120B I.P.C. and order dated 08.07.2014 passed by Additional Sessions Judge, Court No. 6 Allahabad by which applicant''s application (521-Kha) has been rejected.

The present application has been filed primarily on the ground that the matter was finally heard by the trial court and judgment was reserved on 07.06.2014, which was to be delivered on 28.06.2014. However, on 28.06.2014, the judgment was not delivered and the next date fixed for delivery of judgment was 07.07.2014. It has been submitted that on the next date fixed i.e. 07.07.2014, the trial court instead of delivering the judgment had altered the charge against the accused persons including the applicant as Section 452 read with Section 120B, Section 307 read with Section 120B I.P.C. and Section 302 read with Section 120B I.P.C.

Immediately after the aforesaid alteration of charge, the applicant through his counsel moved an application that since fresh charges have been framed against him and as such further opportunity of cross-examination of the witnesses, with regard to new charges, be given to him in order to ensure fair trial.

It has been further contended that the said application has been rejected by the trial court vide judgment dated 08.07.2014.

It is the said two orders which are under challenge in the present criminal miscellaneous application.

The contentions in brief as raised on behalf of applicant are:

a) that by altering the charge on the date of delivery of judgment, there has been an attempt to fill in the lacunae;

b) that no pleading to constitute an offence u/s 120B is existing on the record;

c) That the charges were altered on the date of judgment without giving any opportunity of hearing to the applicant and thus, the order altering the charge itself is bad.

Learned counsel for opposite party on the other hand has contended that u/s 216 of Cr.P.C., the Court has ample power to alter or to add any charge at any time before the judgment is pronounced.

It has further been contended that the witnesses were already examined with regard to the theory of conspiracy and thus mere addition of Section 120 would not make any difference and would not prejudice the interest or fair trial of the accused.

Reference has also been made to Section 464 of Cr.P.C.

I have heard learned counsel for the parties and perused the order dated 07.07.2014 and 08.07.2014.

As far as the question with regard to the power of Court vis-�-vis Section 216 Cr.P.C. is concerned, it remains undisputed that u/s 216 Cr.P.C., the Court may alter or add to any charge at any time before judgment is pronounced.

However, for ready reference Section 216 of Cr.P.C. is being quoted herein below:

Court may alter charge.-(1) Any court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) lf the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

However, it remains to be seen as to whether the Court was justified in passing the order dated 08.07.2014 by means of which the application of the accused-applicant seeking recall of the witnesses with regard to new charges has been rejected.

A perusal of the order dated 08.07.2014 shows that the said application has been rejected merely on the ground that as the witnesses have been examined with regard to theory of conspiracy, thus fresh examination is not required.

Another factor that swayed the mind of the court below in rejecting the said application is that the trial is pending since the year 1993 and that the High Court vide its order dated 26.11.2013 had directed for concluding the trial within a period of three months. However, needless to say that both the grounds seems to be erroneous inasmuch as it is an established law as per Section 217 Cr.P.C. that once a charge has been altered or added, an opportunity has got to be given to the accused in case they so express a desire to recall or cross-examine any witness who has already been examined before.

In the case of Ranbir Yadav Vs. State of Bihar, the Hon''ble Supreme Court has observed as under:

The matter can be viewed from another angle also. Section 216 of the Code empowers the Court to alter or add to any charge at any time before the judgment is pronounced and provides that after such alteration or addition of the charge the Court is required to read and explain the same to the accused in accordance with sub-section (2) thereof. Section 217 of the Code provides that whenever a charge is altered or added to by the Court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or to summon and examine with reference to such alteration or addition any witness who has already been examined unless the Court for reasons to be recorded in writing considers that the desire to recall or reexamine such witness was only for the purposes of vexation or delay or defeating the ends of justice. On a combined reading of the above two sections it is, therefore, evident that after an alteration or addition of the charge the interest of the prosecution and the accused has to be safeguarded by permitting them to further examine or cross examine the witness already examined, as the case may be, and by affording them an opportunity to call other witnesses.

At this stage, the Court would like to refer Section 217 of Cr.P.C., which reads as follows.

Recall of witnesses when charge altered.-Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed-

(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;

(b) also to call any further witness whom the Court may think to be material.

It is worth noting while recommending revision of this section the Law Commission in its 41st report observed as under:--

19.5. u/s 231, whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused "shall be allowed" to recall or re-summon and examine with reference to such alteration, any witness already examined. Where an application is made for re-summoning of such witnesses, the Court is bound to grant it, and cannot refuse it on the ground that the accused cannot be prejudiced or even on the ground that the alteration is of such a nature that it cannot affect the evidence.

Thus, on a purposeful reading of the provision and keeping in mind the facts and circumstances of the case and also the fact that the charges were altered by the court itself and that too on the date of delivery of judgment, therefore, it cannot be said that accused-applicant was trying to delay the proceedings, and thus, the Court should have allowed the recall application of the accused-applicant seeking recall of the witnesses for cross-examination.

In the case of Moosa Abdul Rehman and Anr. v. State of Kerala, 1983 (1) Crimes 216, a Division Bench of Kerala High Court ruled thus:--

It has to be borne in mind in terms of Section 217 Criminal Procedure Code whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecution and the accused shall be allowed to recall or resummon, and examine, any witness who may have been examined, unless the Court for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or defeating the ends of justice.

From the perusal of record, it is clear that the trial court has rejected the application primarily on the ground that the trial is pending since 1993 and that the High Court had issued directions for disposal of the trial itself within a period of three months.

However, the fact remains that by no stretch of imagination can it be said that in the present case it was the accused-applicant at whose behest the charges were altered and on which account the liability of delaying the trial can be fastened on the shoulder of the applicant.

The fact remains that the charges were altered by the trial court itself and that too on the date, which was fixed for delivery of judgment.

Thus, in view of aforesaid facts and circumstances of the case, if the prosecution witnesses, who have been examined are not cross-examined keeping in view the altered charge, this Court is of the considered view that there would be a denial of opportunity to the accused-persons to defend themselves thus, the order passed by the learned trial court dated 08.07.2014 is unsustainable and the same is hereby set aside.

This Court is also of the opinion that as the Court has ample power to alter the charge at any stage of proceeding, the order dated 07.07.2014 does not require interference. More so, in view of direction which the Court is recording herein as under.

The prosecution witnesses who have been earlier examined would be recalled to cross-examine by the accused persons.

However, it is also being made clear that cross-examination will be confined to the sphere relating to the additional charge and shall not be widened upon to engulf any question.

In view of aforesaid discussion, the present application is allowed accordingly.